Madras High Court
R.Sridharan vs The Presiding Officer on 18 August, 2008
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2008
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.34838 of 2004
W.P.M.P.Nos.42032 to 42034 of 2004
R.Sridharan ... Petitioner
vs.
1. The Presiding Officer,
Principal Family Court,
Chennai-104.
2. R.Sukanya ... Respondents
Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Prohibition, prohibiting the first respondent from proceeding with the trial in O.P.No.569 of 2004 on its file.
For Petitioner : Ms.K.M.Nalinishree
For 2nd Respondent : Mr.K.Kannan
O R D E R
The petitioner has sought for a Writ of Prohibition, prohibiting the first respondent from proceeding with the trial in O.P.No.569 of 2004 on its file.
2. Facts leading to the present Writ Petition are as follows:
The petitioner is a domicile in United States of America, since 1992 and is working as a Software Engineer. The second respondent is known to their family since childhood. Marriage between the parties to this lis was arranged by elders. The second respondent, her parents and relatives came to United States and the marriage was performed on 17.04.2002 and registered on 30.07.2002. The second respondent came to India in the second week of January 2003 for a short visit promising to return after completing a dance programme. But she began to act in films and with ulterior motive, she filed O.P.NO.569 of 2004 on the file of the Principal Family Court, Chennai for divorce under the Hindu Marriage Act, alleging cruelty. Since he was residing in United States, summons were not served and therefore, the second respondent obtained an exparte decree of divorce on 19.07.2004. On his application, the order was set aside on 23.09.2004 and the O.P., was restored. Apprehending trial, the second respondent adopted dilatory tactics and filed C.R.P.(PD)No.1695 of 2004, stating that the proceedings of the Family Court should not be published by the Media and obtained an interim stay. The petitioner has filed a counter affidavit, stating that he has no objection for the proceedings be held in camera and did not want any publicity. Therefore, by order dated 29.10.2004, this Court vacated the interim stay and the O.P., was ready for trial. Inspite of several adjournments, the second respondent has not appeared and in these circumstances, the petitioner was constrained to file the present Writ Petition for Prohibition, prohibiting the Family Court from proceeding with the trial in O.P.NO.56 of 2004.
3. According to the petitioner, the Family Court has no jurisdiction to entertain the petition for divorce under the Hindu Marriage Act, since the marriage was performed in United States of America. After the marriage, the petitioner and the second respondent were living as husband and wife in U.S.A and the petitioner, being an American citizen, the provisions of the Hindu Marriage Act, 1955 will not apply. The petitioner has further submitted that he is a domicile in United States of America and not in the territory of India and therefore, Section 1(2) of the Act would come into operation and in the above circumstances, the Family Court at Chennai cannot maintain a petition for divorce. The petitioner has further submitted that unless both the parties are domiciled in India, the petition for divorce under the Hindu Marriage Act is not maintainable.
4. The Second respondent in her counter affidavit has submitted that she got married to the petitioner on 17.04.2002 in Balaji Temple, Bridge Water, New Jercy, U.S.A., in the presence of their parents and relatives, as per Hindu Rites and Customs. Therefore, she has submitted that the rights and the obligations of the parties flow from the provisions of the Hindu Marriage Act. As per Section 19(iii)(a) of the Hindu Marriage Act, inserted by Act 50 of the Central Act, with effect from 20.12.2003, she can institute the proceedings for dissolution of the Marriage at the place where she is residing at the time of presentation of the petition and therefore, the Family Court at Chennai, is competent to decide the lis between the parties.
5. The Second respondent, while rebutting the averments made in Paragraph 6(b), 6(c) and 6(d) of the affidavit filed by the petitioner, has submitted that the petitioner has not explained as to how the O.P., is not maintainable. According to her, as the parties are governed by the personal laws applicable to them, the rights and obligations arising therefrom, can be enforced in the Forums created under the Statutes alone and therefore, the Principal Family Court, Chennai is empowered to adjudicate the dispute. The second respondent has further submitted that though the petitioner has not raised the plea of ouster of jurisdiction in the counter affidavit filed in support of the Original Petition, before the Family Court, however, he has mentioned about the application of Foreign Marriages Act, 1969 and in particular Section 18(1) of the said Act. The second respondent has further submitted that the marriage was not performed before the Marriage Officer notified under the said Act and it was also not registered before him, as required under the said law and therefore, the provisions of Foreign Marriages Act will not apply to the facts of this case. As a matter of fact, the Family Court itself can decide both the issues regarding jurisdiction and the merits of the case and therefore, the present Writ Petition is not maintainable. It is further submitted that once the petitioner submits himself to the jurisdiction of the Court by filing a counter statement on merits with documents in support of his case, it is not open to him to stall the proceedings, by instituting a Writ Petition before this Court and under these circumstances, the petitioner is not entitled to the relief sought for in the Writ Petition.
6. Referring to Section 1(2) of the Hindu Marriages Act, Ms.K.M.Nalini Shree, learned counsel appearing for the petitioner submitted that as the marriage between the parties was solemnized in Balaji Temple, Bridge Water, New Jercy, United States of America and since the petitioner is not a domicile in India, Section 1(2) of the Hindu Marriage Act, which extends to the whole of India, except Jammu and Kashmir, cannot be made applicable to the Hindus, who are domiciled outside the territories to which the Act extends. She further submitted that when the second respondent herself had admitted in her counter affidavit that the petitioner is a resident of USA, supported by the passport issued by the authorities at St.Francisco., USA, the Petitioner's domicile is clearly established and therefore, she submitted that the Principal Family Court, Chennai has no jurisdiction to apply the provisions of the Hindu Marriage Act or Family Courts Act to adjudicate upon the dispute between the parties. According to her, domicile of a person is a place, in which, habitation is fixed without any personal intention of removing therefrom. In support of her contention, she relied on a decision of the Supreme Court in Central Bank of India Ltd., v. Ram Narain reported in AIR 1995 SC 36.
7. Placing reliance on a decision of the Calcutta High Court in Gour Gopal Roy v. Sipra Roy reported in AIR 1978 Cal. 163, learned counsel for the petitioner submitted that Section 1(2) of the Hindu Marriage Act, extends to the whole of India, except Jammu and Kashmir, to all persons to whom the Act applies, should be within the territory and it excludes those who are domiciled outside the territorial jurisdiction, to which, the provisions of the Act applies. According to her, the provisions of the Foreign Marriage Act alone would apply to the facts of the present case and in view of the Foreign Marriages Act, the question of applying Private International Law does not arise.
8. Placing reliance on a decision in Chandrika v. Bhaiyalal reported in AIR 1973 SC 2391, learned counsel for the petitioner submitted that though the petitioner has filed his counter statement and contested the matter before the Family Court, Chennai, it is always open to him to raise the question of territorial jurisdiction at any stage. As the Family Court lacks jurisdiction, the petitioner has prayed for a Writ of Prohibition, prohibiting the Family Court from proceeding with the trial in O.P.No.56 of 2004.
9. Per contra, Mr.K.Kannan, learned counsel for the second respondent has submitted that the marriage was solemnized according to Hindu Marriage Act and therefore the provisions of the Act are applicable to the parties to the marriage. He further submitted that the petitioner had himself submitted to the jurisdiction of the Family Court and agreed for the trial "in Camera" in a collateral proceedings in C.R.P.(PD)No.1695 of 2004 and therefore, it is not open to the petitioner to raise the plea of jurisdiction in this Writ Petition. According to him, both the parties to the marriage were originally domiciled in the territory to which the Act extends and therefore, the Matrimonial Original Petition is maintainable.
Heard the learned counsel appearing for the parties and perused the materials available on record.
10. Before adverting to the facts of the case, it is relevant to extract few judgments of the Supreme Court, as to when a Writ of Prohibition could be issued by High Courts. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like Certiorari, Prohibition and Mandamus in United Kingdom, yet the basic principles and norms apply to the writ must be kept in view, as observed by the Supreme Court of India in T.C.Basappa v. Nagappa reported in AIR 1954 SC 440.
11. In S.Govindan Menon vs. Union of India reported in AIR 1967 SC 1274, the Supreme Court held that the jurisdiction for grant of Writ of Prohibition is primarily supervisory and object of the Writ is to restrain courts or inferior Tribunals from exercising jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine court or tribunals of inferior or limited jurisdiction within their bounds. The writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the Writ does not lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of the proceedings. The writ cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go out side its jurisdiction. A clear distinction has therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction than the matter is coarum non judice and a writ of prohibition will lie to the Court or inferior tribunal forbidding it to continue proceedings therein in excess of jurisdiction. This view was taken following the decision of Regina Versus Controller General of Patents and Designs reported in (1953) 2 WLR 760.
12. In Thirumala Tirupathi Devasthanam and another versus Thallappaka Ananthacharyulu and another (2003) 8 SCC 134 at paragraph 14 the Honourable Supreme Court of India held as follows:
14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction.
13. In the light of judicial pronouncements of the law of the land, on the exercise of extraordinary jurisdiction to issue prohibitory Writs, the provisions of the Hindu Marriage Act, Special Marriage Act, Foreign Marriage Act are required to be extracted for examination, whether the Family Court, Chennai lacks jurisdiction to entertain the matrimonial Original Petition, to adjudicate the dispute, leading to the prayer for divorce between the spouses, where one of the party is an American National and said to have acquired domicile of that country, where the marriage between them is admittedly solemnised as per Hindu Rites and Customs.
14. Sections 1 and 2 of the Hindu Marriage Act, 1955 deals with short title, extent and Application of the Act and they are as follows:
"1. Short title and extent:- (1) This Act may be called the Hindu Marriage Act, 1955 (2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.
2. Application of Act:- (1) This Act applies-
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a Follower of Brahmo, Prathana or Arya Samaj
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed."
15. Section 19 of the Hindu Marriage Act, 1955 is extracted hereunder:
"19. Court to which petition shall be presented:- Every petition under this Court shall be presented to the District Court within the local limits of whose ordinary original Civil jurisdiction:-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
16. Section 31 of the Special Marriage Act (43 of 1954) reads as follows:
"31. Court to which petition should be made: (1) Every petition under Chapter V or Chapter VI shall be presented to the district Court within the local limits of whose original civil jurisdiction-
(i) the marriage was solemnized; or
(ii) the respondent, at the time of presentation of the petition, resides; or
(iii) the parties to the marriage last resided together; or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.
(2) Without prejudice to any jurisdiction exercisable by the Court under sub-section (1), the district Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories."
17. Section 4 of the Foreign Marriage Act (33 of 1969) contemplates conditions relating to solemnization of Foreign Marriages and it reads as follows:
"A marriage between parties one of whom atleast is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:-
(a) neither party has a spouse living,
(b) neither party is an idiot or a lunatic,
(c) the bridegroom has completed the age of twenty-one years and bride the age of eighteen years at the time of marriage, and
(d) the parties are not within the degrees of prohibited relationship.
Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage maybe solemnized, notwithstanding that they are within the degrees of prohibited relationship."
18. Sections 5 and 6 of the Foreign Marriage Act read as follows:
"5. Notice of intended marriage:- When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notic thereof in writing in the form specified in the First Schedule to the Marriage Officer of the District in which atleast one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has no resided.
6. Marriage Notice Book:- The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the "Magistrate Notice Book", and such book shall be open for inspection to all reasonable times, without fee, by any person desirous of inspecting the same."
19. Section 17 of the Foreign Marriage Act deals with registration of foreign marriages and it reads as follows:
"17. Registration of foreign marriages:- (1) Where-
(a) a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between the parties of whom one at least was a citizen of India; and
(b) a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this Section, the Marriage Officer may, upon payment of the prescribed fee, register the marriage.
(2) No marriage shall be registered under this section unless at the time of registration it satisfies the conditions mentioned in section 4.
(3) The Marriage Officer may, for reasons to be recorded in writing, refuse to register a marriage under this section on the ground that his opinion the marriage is inconsistent with international law or the comity of nations.
(4) Where a Marriage Officer refuses to register a marriage under this Section the party applying for registration may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such appeal.
(5) Registration of a marriage under this section shall be effected by the Marriage Officer by entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses.
(6) A marriage registered under this Section shall, as from the date of registration, be deemed to have been solemnized under this Act."
20. Section 18 of the Foreign Marriage Act (33 of 1969) reads as follows:
"18. Matrimonial reliefs to be under Special Marriage Act, 1954 (1) Subject to the other provisions contained in this Section, the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954, shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one atleast is a citizen of India as they apply in relation to marriages solemnized under that Act.
Explanation:- In its application to the marriages referred to in this sub-section, Section 24 of the Special Marriage Act, 1954, shall be subject to the following modifications, namely:-
(i) the reference in sub-Section (1) thereof to clauses (a), (b), (c) and (d) of Section 4 of that Act shall be construed as a reference to clauses (a), (b), ( c) and (d) respectively of Section 4 of this Act, and
(ii) nothing contained in Section 24 aforesaid shall apply to any marriage:-
(a) which is not solemnized under this Act; or
(b) which is deemed to be solemnized under this Act by reason of the provisions contained in Section 17:
Provided that the registration of any such marriage as is referred to in sub-Clause (b) may be declared to be of no effect if the registration was in contravention of sub-section (2) of Section 17."
21. As domicile and nationality of the petitioner being the core objection of the petitioner to contend that the Family Court has no jurisdiction to entertain the petition under Hindu Marriage Act, let me reproduce the definition of the word 'domicile' as extracted in Union of India and others versus Dudhnath Prasad reported in (2000) 2 SCC 20 and how the word should be interpreted in a given case.
"20. In Tomlin's Law Dictionary, "domicile" has been defined as "the place where a man has his home".
21.In Whicker v. Hume [(1858) 28 LJ Ch. 396], it was held that a a person's domicile means, a generally speaking, the place where he has his permanent home.
22.In Mc.Mullen v. Wadsworth [(1889) 14 AC 631], it was observed that "the Roman law still holds that 'it is not by naked assertion but by deeds and acts that a domicile is established'".
23.Lord Macnaghtenin in Winams v. A.G. [1904 AC 287] observed that:
"Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicile of birth, differs from domicile or choice mainly in this---that its character is more enduring, its hold stronger and less easily shaken off."
24.In Ross v. Ross [1930 AC 1], Lord Buckmaster while dealing with a case relating to change of domicile observed that:
"Declarations of intention are rightly regarded as determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression.
26.Etymologically, "residence" and "domicile" carry the same meaning, inasmuch as both refer to the "permanent home", but under private international law, "domicile" carries a little different sense and exhibits many facts. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. "Domicile" may also take many colors; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In private international law, "domicile" jurisprudentially has a different concept altogether. It plays an important role in the conflict of laws. The subject has been elaborately considered by Dicey in his book Conflict of Laws (6th Edn.) as also in another book by Phillimore on domicile. An equally valuable discussion is to be found in Private International Jurisprudence by Foote and by Westlake on private international law.
28.In view of the above, the concept of "domicile" as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, "domicile" and "residence" are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statue in which these words are used."
22. Y.Narasimha Rao and others versus Y.Venkatalakshmi and another reported in (1991) 3 SCC 451, at paragraphs 20 and 21, the Supreme Court held that, "20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wifes domicile follows that of her husband and that it is the husbands domiciliary law which determines the jurisdiction and judges the merits of the case."
23. In Stanley v. Bernes [162 E.R.1190], while dealing with the case relating to domicil of origin, the Court observed as follows:
"For certain purposes a man takes his character, prima facie, from the place where he is domiciled, and, prima facie, he is domiciled where he is resident, and the force of residence, as evidence of domicil, is increased by the length of time during which it has continued. All these principles are clear; but time alone is not conclusive, for where is the line to be drawn? Will the residence of a month, or a year, or five years, or fifty years be conclusive? As a criterion, therefore, to ascertain domicil, another principle is laid down by the authorities quoted as well as by practice - it depends on the intention, on the quo animo that is the true basis and foundation of domicil; it must be a residence sine animo revertendi, in order to change the domicilium originis: a temporary residence for the purposes of health, or travel, or business has not the effect: it must be a fixed and permanent residence, abandoning finally and for ever the domicil of origin; yet liable still to a subsequent change of intention."
24. In Sondur Rajini v. Sondur Gopal reported in 2005 (4) Mah.LJ 688, the petition was filed by the wife, seeking a decree for judicial separation for custody of minor child and for maintenance. The respondent-husband after having tied the nuptial knot at Bangalore was working in Sweden. The couple lived abroad, purchased their own house in Stockholm and were blessed with a child. Thereafter, the respondent-husband went to Australia, but on losing his job, came back to India with children. She filed petition seeking for judicial separation. Objection was raised by the respondent-husband as to the maintainability of the petition on the ground that both parties are citizens of Sweden and not domiciled in India. A letter of the respondent was produced before the Court that he never had an intention to permanently settle in Australia. There was also nothing on record to show that he had ever given up his domicile of origin, i.e., India. The Division Bench of Bombay High Court, after analysising the law on domicile, held that the Family Court in Mumbai has jurisdiction to entertain the petition for judicial separation. While upholding the contentions of the wife, the Division Bench observed as follows:
"....the marriage was solemnised by Hindu Vedic Rites and registered under H.M. Act. It may be noticed that none of the provisions of H M. Act lay down the time and condition under which it will cease to apply. In other words, once the provisions of H.M. Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to bundle of rights and obligations between the parties to the marriage and their progeny. Therefore, the system of law which should govern a marriage, should remain constant and cannot change with vagaries/whims of the parties to the marriage. We may briefly glance at Cheshire and North Pvt. International Law, wherein the learned Author at page 124 points out that "it has been universally recognised that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred". The time at which the domicile is to be determined is when the proceedings under H.M. Act are commenced, is accepted then every petition filed by the wife whose husband moves from one country to another for the purposes of job or for any purpose whatsoever, he would be able to frustrate a petition brought by the wife by changing his domicile even between the presentation of the petition and the hearing of the case. The rule is "once competent, always competent" and this will be so even if the party domiciled in India at the time of their marriage has since changed his domicile, disassociated himself from the determination of his status by the Court in India. The proposition of law canvassed, that the time at which the domicile is to be determined is when the proceedings are commenced, therefore, cannot be accepted, insofar as the petitions under H.M. Act is concerned, inasmuch as it would be against the public policy in this country and which may create a serious social problem. The Hindu society is deeply interested in maintaining integrity of the institution of the marriage. Once the parties have selected H.M. Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. Therefore, we are of the considered opinion that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India. It is unjust that a party to the marriage can change his entire system of personal law by his or her unilateral decision. If that is allowed it would make the position of a wife very miserable or helpless. We have therefore, no hesitation in holding that the provisions of H.M. Act will continue to apply to the marriage of parties who were admittedly domiciled in India on the date of their marriage and they cannot be heard to make a grievance about it later or allowed to by-pass it by subterfuges. The rule, as observed by the Apex Court in the case of Y. Narsimha Rao also has an advantage of rescuing the institution of marriage from uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction.
25. The Division Bench of the Bombay High Court in Navin Chander Advani v. Leena reported in AIR 2005 Bombay 277, considered a case, in which, both parties are Hindus, domiciled in India before marriage, soleminised their marriage in United States of America, according to Hindu Vedic Rites. The Husband invoked the jurisdiction of the Family Court and the petitioner was rejected on the ground of lack of jurisdiction. Aggrieved by the same, he moved the High Court and pleaded that he was domiciled in the State of Maharashtra and the marriage was solemnised, according to Hindu Vedic Rites and registred before the Registrar of San-Jose California State. The appellant submitted that he was a permanent resident of Bombay and professing Hindu Religion. While setting aside the order of the Family Court, the Division Bench held as follows:
"Thus, from reading these averments it appears that the husband and wife both are Indian citizens, domiciled in India. However, they have performed their marriage according to Hindu rites on 19th July, 1998 in U.S.A. Let the fact as it is what we find that since the parties are Indian citizens and domiciled in India, the Courts in India will have jurisdiction. The Family Court has jurisdiction to deal with the matters under the Special Marriage Act and equally under the Hindu Marriage Act. It has even jurisdiction to deal with matrimonial matters where the parties are Muslims. Except, the Parsi Marriage Act for all other marriage the Family Court is having jurisdiction. While deciding the matter the Family Court is only expected to look into personal law of the parties. Looking from this angle with reference to Section 31, sub-section (1), Clause (4) of Special Marriage Act and Section 19, sub-section (1) Clause (4) of the Hindu Marriage Act are at verbatim. Under Section 31(1) it provides that every petition under Chapter V or Chapter VI shall be presented to the District Court within the local limits of whose original civil jurisdiction - (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends ....... ......... .........." and under Section 19 it provides "Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction- (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends ....... ........ ........." thereby the situation has been contemplated that the appellant is residing within the ordinary civil jurisdiction of the Court and other side namely the respondent is residing outside the territories to which this Act extends. This aspect has not been considered by the Family Court, therefore, keeping this in view what we find is that it was obligatory for the Family Court to find out as to whether the marriage petition is to be considered under the Hindu Marriage Act or Special Marriage Act. It was equally necessary for the Family Court to look into the provisions pertaining to the jurisdiction which we have quoted from both the enactments. The Family Court has not looked into these provisions and in casual manner stated that the marriage is performed outside India. The parties are residing in USA and has returned marriage petition. In fact on proper application of law even it was obligatory for the Family Court to consider conversion of the petition, if the request for amendment, is made to that effect by the applicant. In short, what we find is that the marriage petition has been returned in very casual manner without looking into the provisions of law."
26. In Vinaya Nair v. Corporation of Kochi reported in AIR 2006 Kerala 275, a Division Bench of Kerala High Court considered a case of refusal to register a marriage on the ground that husband was a Canadian domicile. The first petitioner therein was a Hindu by birth, professing Hindu Religion, married the second petitioner, a Hindu by religion, as per Hindu Rites and complied with all the conditions for valid Hindu marriage. It was held that the Act does not give much emphasis to the word "domicile" except in Section 1(2) of the Act. In the reported case, the first petitioner husband was an employee of Canada and the second petitioner was his wife. The first petitioner was born in Canada while parents were at Canada and he acquired Canadian citizenship by birth and therefore he has a Canadian domicile by birth. While directing the municipal authorities to register the marriage, the Division Bench, at Paragraph 6, held as follows:
"Though S.1(2) states that the Act extends to the whole of India except the State of Jammu and Kashmir and also to Hindus domiciled in the territories to which this Act extends, the word "domicile" does not figure in sub-clause (a) and (b) of S. 2(1). Sub-Clause (a) of S.2(1) states that the Hindu Marriage Act applies to any persons who is Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Sama. Sub-clause (b) of S.2(1) states that the Act applies to any person who is Buddhist, Jaina or sikh by religion meaning thereby cls.(a) and (b) require the form of Hindu to make Act applicable. Sub-clause (c) states that the Act applies to any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of the law. A conjoint reading of Ss.1 and 2 of the Act would indicate that so far as the second limp of S.1(2) of the Act is concerned its intra territorial operation of the Act which applies those who reside outside the territories. First limp of Sub-Section 2 of S. 1 and Cls.(a) and (b) of S.2 (1) would make it clear that the Act would apply to Hindus reside in India whether they reside outside the Territories or not. The word "Hindu" as such is not defined in the Act. All the same, Sub-Section (3) of S.2 says that the Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless a person to whom this Act applies by virtue of the provisions contained in the Section. Section 5 as we have already indicated deals with the conditions for a Hindu Marriage. It is not the conditions in Section 5 that the Hindu who is solemnizing the Marriage under Hindu Marriage Act should have domiciled in India. We may in this connection referred to the applicability of the Hindu Succession Act, 1956. Section 1(2) of the Act states that it extends to the whole of India except the State of Jammu and Kashmir. Section 2(1) deals with the applicability of the provisions of the Act and also the jurisdiction of the Court. There is no second part to sub-Section (2) providing for extra territorial operation. Section 2 of the Hindu Succession Act also does not contain any reference to domicile. When we compare the provisions of the Hindu Marriage Act and the Hindu Succession Act, 1956, it is clear that the concept of domicile has been brought only in the second limb of sub-section (2) of S.1 of the Hindu Marriage Act read with S.5(1) of the Act. So far as the present case is concerned, clause applicable is the first limb of sub-section (2) of S.1 read with Cl.(a) of sub-section (2) of S.2 of the Act. Test to be applied is whether both the parties are Hindus by religion in any of its forms and whether they have satisfied the condition laid down in S.5 of the Hindu Marriage Act and whether they have followed the ceremonies of Hindu Marriage Act as provided in S.7 of the Hindu Marriage Act. The concept of domicile as we have already indicated would apply only in a case where the second limb of S.1(2) of the Hindu Marriage Act read with sub-Clause (a) of S.2(1) is attracted. We are of the view that the petitioners have satisfied the conditions laid down in S.5 of the Act and also the first limp of sub-section (2) of S.1 read with Cls.(a) and (b) of S.2(1) of the Hindu Marriage Act, 1955."
A few judgments on the aspect of relevance of nationality to domicile is also necessary for adjudicating the dispute in this case.
27. In D.P.Joshi v. State of Madhya Pradesh and another reported in AIR 1985 SC 334, the Apex Court observed that citizenship and domicile represent two different conceptions. Citizenship has reference to political status of person and domicile to his civil rights. Domicile has reference to the system of law by which a person is governed and when we speak of domicile of a country, we assume that the same system of law prevail all over the country.
28. In Michael Antony Rodrigues v. State of Bombay reported in AIR 1956 Bombay 729, the Court observed that under Article 5 of the Constitution of India nationality and domicile are two different concepts. In Private International Law, a man may have one nationality and different domicile. He may have a national to one country and he may have a domicile in another country.
29. At Cheshire and North's Private International Law, it was observed that, "Nationality is a possible alternative to domicil as the criterion of the personal law. These are two different conceptions. Nationality represents a person's political status, by virtue of which he owes allegiance to some particular country; domicil indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality, depends, apart from naturalisation, on the place of birth or on parentage, domicil, as we have seen, is constituted by residence in a particular country with the intention of residing there permanently. It follows that a person may be a national of one country but domiciled in another."
30. It is therefore, clear that in both the Indian and International Law the concept of Nationality and domicile are recognised as two different conceptions, which necessarily mean, an Indian by retaining his domicile in India may acquire citizenship of other country. In other words, merely because a person has acquired citizenship of some other country that does not necessarily mean that he has abandoned domicile of origin.
31. In Udny v. Udny reported in 1989 LR 1 SC Div, it was held that a person may have domicile at one point of time. If a person takes up foreign domicil, his origin or native domicil simply remains in abeyance. As soon as he abandons foreign domicil, the original domicil is automatically received. If the domicil of origin is displaced as a result of acquisition of a domicil of his/her choice, the domicil is merely placed in abeyance for time being.
32. In the present case, the uncontroverted fact is that the marriage between the parties was solemnized as per Hindu Rites and Customs and both the parties are Hindus. Though the respondent has disputed the registration of marriage before the Marriage Officer in U.S.A., the form of marriage is admitted. Judicial pronouncements of the Courts makes it clear that in a case determining the domicile of a person, it should be examined and understood in the contest to which the word "domicil" is used, having regard to the nature and purpose of the statute. As observed in Stanley v. Bernes [162 All. ER 1190], it depends on the intention "on the quo animo", the true basis and foundation of domicil, whether he has abandoned finally and for ever the domicil of origin. As held in Ross v. Ross (cited supra), the declaration of intention, conduct and actions of a person, alleging change of domicile is relevant to conclude as to whether he has completely abandoned the domicile of his origin and accepted and conducted in a manner, adopting the domicile of his choice. While doing so it should be kept in mind that Citizenship and Nationality has reference only to political status and allegiance to a country and domicil has reference to the system of law which a person is governed and it indicates civil status, personal rights and obligations flowing from the laws to which he/she acquiesces himself/herself to its jurisdiction. It should be borne in mind that Hindu Marriage Act has extra territorial jurisdiction to all Hindus, even if they reside outside the territories of India. The Hindu Marriage Act, in particular Section 2, does not stipulate any condition that both the parties should be domiciled in India at the time of presentation of the petition before the Family Court or any other Court of competent jurisdiction. Even as per the averments of the petitioner, the members of the family were known to each other before the marriage and they were neighbours residing next door. Admittedly, the petitioner, domiciled in India before setting up his residence in U.S.A. Therefore, his domicile of origin is within the jurisdiction of Family Court, Chennai.
33. As stated supra, Section 2 of the Hindu Marriage Act does not stipulate any stringent condition that both parties should be residing within or domiciled in the jurisdiction of India for maintaining a petition under the Hindu Marriage Act. In fact, it covers all Hindus, who are residing outside the territory to which this Act extends also. Clause 4 of Sub-Section 1 of Section 31 of the Special Marriages Act, and Clause 4 of Section 19 of the Hindu Marriage Act are pari-materia provisions. As per Clause 4 of Section 19 of the Hindu Marriage Act, the petition, under this Act shall be presented to the District Court, within the local limits of whose ordinary Original Civil jurisdiction, where the petitioner is residing at the time of presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him of he were alive.
34. The above said provision enables presentation of the petition before the District Court of competent jurisdiction or Family Court even if the respondent is residing outside the territories to which the Hindu Marriage Act extends. Admittedly, the petitioner is domiciled in India by birth and origin and acquisition of domicile of another country by choice or nationality, cannot be imported into Section 2 of the Hindu Marriage Act and it will not oust the jurisdiction of the Family Court/District Court of competent jurisdiction to entertain a petition under the Hindu Marriage Act or Special Marriages Act, as the case may be.
35. Except in Section 1 and 2, the Word 'Domicile' does not figure in any of the provisions of the Hindu Marriage Act. A conjoint reading of Sub-Clause (a) and (b) of Section 2(1) and sub-Clause 2(a) of Section 1, would mean that the Hindu Marriage Act applies to any person, who is Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
36. The Act only stipulates certain conditions for the valid Hindu Marriage and one of the conditions being that both the parties should be Hindus. It is well settled rule of construction that if there are two or more provisions in a statute, appear to be in conflict with each other, the provisions have to be interpreted in a manner to give effect to the provisions and that any construction which renders the operation of one provision as ineffective, should not be adopted, except as a last resort. Therefore, on a conjoint reading of above three provisions, viz., (1) Section 1 (2) Section 2 and (3) Section 19 of the Hindu Marriages Act and applying the rule of Harmonious construction, this Court is of the considered view that the Family Court at Chennai, has jurisdiction to maintain the Original Petition filed by one of the parties to the Hindu Marriage Act, against the other. In a given case, where marriage is solemnised between Hindus and the wife stranded in a foreign country without financial or parental assistance, returns to India under fear of living in foreign country without any assistance, for such women, the Court should not remain as a mute spectator and dismiss the complaint/petition on the ground that the husband has acquired domicile in foreign country of his choice and therefore, no proceedings can be initiated against him under the Hindu Marriage Act for appropriate relief, which could be for judicial separation or divorce or for even alimony.
37. In the instant case, the petitioner is domicil of India by origin. The marriage was solemnized as per Hindu Vedic Rights and Customs and therefore, there is no doubt to this Court that the intention of the parties was to be governed by the personal law, viz., Hindu Marriage Act. Having chosen to accept the said Act as their personal law, one cannot abdicate the same on his free will and fancies and deny the other contracting party, the rights and obligations flowing from the statute. As observed by the Division Bench of the Bombay High Court in Sondur Rajini's case, "it is unjust that a party to a marriage can change his entire system of personal law by his or unilateral decision and if that is allowed, it would make the position of the wife miserable". Again, as observed by the Supreme Court in Narasimha Rao's case, the parties contracting the marriage under the Hindu Marriage Act, knows their right and obligations when they solemnized their marriage and one of them cannot be allowed to bye-pass it by subterfuge. If that is to be allowed by the Courts, it would create chaos in applicability of the laws. The contention of the petitioner that he was an American National and therefore, the Hindu Marriage Act is not applicable, is not tenable, in view of the difference in the concepts that, Nationality represents the man's political status, by virtue of which, he owes allegiance to the country, whereas, Domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Personal Law to which the party belongs, is not dependent on the nationality as both are conceptually different. Personal law is closely associated with the domicil of origin, his personal status and relationship, such as, marriage, divorce, legitimacy, succession, etc., which cannot be changed overnight by acquiring the domicile of his choice, unless the said person who claims change, places strong and acceptable legal evidence.
38. Hindu Marriage Act, only states that the parties to the lis must have domiciled in the territories to which the Act extends. It is not the case of the petitioner that he had never domiciled in the territories of India nor he is governed by the personal law of the country, which he has chosen as his domicile. As stated supra, for all purposes, like marriage, divorce, succession, legitimacy, he is governed by the personal law of the domicile of origin, which is that form of origin, imposed by operation of law on every person at birth.
39. The domicile of origin continues to operate throughout his life and the Hindu Marriage Act merely states that it would be applicable to all Hindus domiciled in the territories to which the Act extends, even if they are outside the territory. Therefore, while adjudicating the dispute between the parties, it is necessary to lay emphasis in the form of Marriage and the intention of the parties to be governed by the personal law of domicile. Reading of the provisions of Section 2(c) of the Act contemplates extra territorial operation in the sense that the persons domiciled in other country to which the Hindu Marriage Act may extend, are governed by the Hindu Law and not any other personal law. Citizenship or nationality or domicile of the husband would not be an imperative qualification in adjudicating the dispute, as both the contracting parties are Hindus, whose marriage is admittedly solemnized as per Hindu Vedic Rites and Customs. It is should be noted that in Narasimha Roa's case, the Supreme Court observed that the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband is no more in existence.
40. Reading of the Act in entirety does not indicate that the provisions would be applicable only if the marriage is solemnized in the territories to which this Act extends, whereas the Act provides for extra territorial operation. Sub-Section 2 of Section 1 of the Act deals with two aspects, viz., (1) it deals with the territory to which the Hindu Marriage Act extends and (2) the persons to whom the Act is applicable. Therefore, in the light of the principle to be followed in construing the word 'domicile' as laid down in Dulbnath Prasad's case, [(2002) 2 SCC 50], place of residence by itself would not establish domicile of an individual, but it should be understood in the context of the Statute, viz., personal law applicable to the parties.
41. Interpretation of a Statutory provision should be to find out the intention of the legislature and that has to be understood with due regard that the object of the legislation also. The word employed in the Statute will acquire meaning and content depending upon the context in which they are used. The word should not be torn out by the context and by interpretation, it would make another provision Otiose/redundant and such interpretation should not be adopted. The interpretation to the words employed in Section 1(2) of the Hindu Marriage Act should be consistent with the working of the enactment, keeping in mind the object of the Act. Reference can be made to the decision in Marya Teresa Martin v. E.Martin, Madras reported in AIR 1994 Kerala 264.
42. In Anwar Hasan Khan v. Mohd. Shafi reported in 2001(8) SCC 540, the Supreme Court, at Paragraph 8, held as follows:
"For interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not harmonious construction."
43. The marriage between the parties was solemnized on 17.04.2002 and after three months, it was said to be registered before the Marriage Officer. There are no details in the counter statement filed by the husband as to whether the marriage was solemnized before the Marriage Officer, in accordance with the procedure contemplated under the Foreign Marriage Act, in particular, Sections 4 to 6 of the Act. Excepting the Marriage Certificate said to have been enclosed with the counter statement, there is nothing on record to prove that the parties have intended to adopt the law of that country or the Special Marriages Act. A marriage performed under the Hindu form of Marriage under the Hindu Marriage Act is different from the Civil Marriage under Foreign Marriage Act or the Special Marriage Act. A marriage solemnized as per Vedic Rites and Customs, personal law applicable to the parties has its own rights and obligations, and mere registration of the marriage for the purpose of recognition under the Foreign Marriage Act would not deprive the second respondent of her right to seek for matrimonial reliefs provided under Hindu Marriage Act. The case laws relied on by the learned counsel for the petitioner would not lend support to her contention in view of the subsequent pronouncements of the Supreme Court on the issue of domicile. The contentions opposing the jurisdiction of the Family Court to entertain the petition under the Hindu Marriage Act are not accepted.
44. It is the law of the land that Writ of Prohibition will be issued as soon as inferior court/tribunal proceeds to apply a wrong principle of law when deciding a fact on which jurisdiction depends. Prohibition is primary principal preventive rather than remedial remedy. The effect of the remedy is an injunction against the court or tribunal commanding it to cease from the exercise of jurisdiction to which it has no legal claim. Prohibition is not a writ of right guaranteed ex-depito justice. But one of sound judicial discretion to be granted or withheld according to the consideration of the particular case. When there is entire absence of jurisdiction over the subject matter of adjudication and this is apparent on the face of the proceedings, the granting of reliefs by prohibition is not a matter of discretion, but one of absolute right.
45. In the light of the decisions of the Courts dealing with matrimonial matters with reference to domicile of the parties, I am of the considered view, the Family Court or any other competent Court has got jurisdiction to adjudge any dispute between the contracting parties, one of whom is a foreign national, said to have acquired domicile of his choice.
46. For the forgoing reasons, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
18.08.2008 Index: Yes skm To The Presiding Officer, Principal Family Court, Chennai-104.
S. MANIKUMAR, J.
skm W.P.No.34838 of 2004 18.08.2008